Pro-Life Groups Demand Inquiry Into Kagan's Perjured Testimony

A letter created by Americans United for Life Action and signed by at least 30 state, national and legal organizations asks for "an investigation into discrepancies between Kagan's testimony before Congress and written documentation of her undue influence on medical organizations while advising President William J. Clinton on partial-birth abortion legislation."

Kagan, who was then an associate White House counsel, was doing her job: advancing the president's interests. The real culprit was ACOG, which adopted Kagan's spin without acknowledgment. But the larger problem is the credence subsequently given to ACOG's statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.

The Kagan story appeared Tuesday in National Review and CNSNews.com. You can read the underlying papers at the Media Research Center. There are three crucial documents. The first is a memo from Kagan on June 22, 1996, describing a meeting with ACOG's chief lobbyist and its former president. The main takeaway from the meeting, Kagan wrote, was that "there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated," i.e., abortions in which the partial-birth technique was necessary to protect a woman's life or health. She explained:

In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman's health; another option—whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term—is equally safe.

The second document is a draft ACOG statement on "intact D&X" (aka partial-birth) abortions, faxed by ACOG to the White House on Dec. 5, 1996. The statement said that

a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women.

The third document is a set of undated notes in Kagan's handwriting, offering "suggested options" for editing the ACOG statement. They included this sentence: "An intact D+X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination." This sentence was added verbatim to the final ACOG statement released on Jan. 12, 1997, which read in part:

A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision.

The basic story is pretty clear: Kagan, with ACOG's consent, edited the statement to say that intact D&X "may be the best or most appropriate procedure" in some cases. Conservatives have pounced on this, claiming that Kagan "fudged the results of [ACOG's] study," "made up 'scientific facts,' " and "participated in a gigantic scientific deception." These charges are exaggerated. The sentence Kagan added was hypothetical. It didn't assert, alter, or conceal any data. Nor did it "override a scientific finding," as National Review alleges, or "trump" ACOG's conclusions, as Sen. Orrin Hatch, R-Utah, contends. Even Power Line, a respected conservative blog, acknowledges that ACOG's draft and Kagan's edit "are not technically inconsistent." Kagan didn't override ACOG's scientific judgments. She reframed them.

No she didn't do just that.

The word "may" has a lot of meanings. It expresses a possibility... but what level of possibility are we talking about? I can say the sun may not rise tomorrow -- and, indeed, it is technically possible that some unannounced catastrophe could arrest the earth's spin so that the sun never rose again.

Or I can say it "may" rain tomorrow based on forecasts of a 60% likelihood of precipitation.

There is obviously a lot of ground covered here, and large differences between that first and second sense of "may." The first sense states merely that something is technically possible, no matter how unlikely; the second sense states it's likely.

In Kagan's case, she was specifically told that doctors could identify no situations in which the partial birth abortion was needed to save the life or health of the mother... and, indeed, they had trouble even imagining such situations!

In her own notes, she confesses this (this is from that first link):

In a June 22, 1996, memo, Kagan admitted that her meeting with the ACOG was "something of a revelation," for she learned that "in the vast majority of cases, selection of the partial-birth procedure is not necessary to avert serious adverse consequences to a woman's health."

In a Dec. 14 memo of that year, Kagan summarized the official ACOG report released in October as a "disaster," for it stated that "a select panel convened by ACOG could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman," a resounding blow to the president's position.

But the ACOG position was that the doctor should have the right to make a decision on a case-by-case basis. That's a conclusion, not a fact, and what was sought from them was the actual facts that should guide legislators and courts.

So Kagan changed the facts. Rather than admit that her position is based upon a situation that trained OB/GYN's have difficulty even imagining, she recast this negative -- this statement of a negative likelihood of the need of a partial birth abortion -- into a positive. It may be necessary. Just like the sun may not rise tomorrow.

True -- it may happen that way, but betting men would take odds against.

In no possible world would ACOG's actual position -- "we can identify no actual situations in which this procedure is necessary, and in fact have trouble even imagining such situations, but we think doctors should still have that option" -- ever carried the day in courts. That's why she branded the facts a "disaster" for her side -- they were a disaster.

So she changed the facts. Rather than the truth -- that this hadn't happened before and seemed unlikely to happen in the future -- she offered a lie: "It may be necessary," as if doctors had in mind a set of circumstances in which this would be the case.

In fact, they explicitly did not.

This is not "reframing." This is relying upon the inherent ambiguity of the word "may" to turn a clear statement that the procedure has never been necessary under real-world circumstances and in fact it's hard to imagine it being necessary under speculative, imaginary ones into a statement that the procedure may be necessary.

(This is why PowerLine says there is no "technical inconsistency" in changing the meaning by use of the word "may" -- because the broad meaning of "may" gives you a lot of room to deceive without being caught in convictable perjury. But they are speaking only to that -- not towards whether there was an effort to deceive and alter meaning, an effort that resulted in wild success for untruth.)

Even after Saletan offers his weak "reframing" claim, he notes that Kagan lied offered testimony at odds with the facts.

[Kagan answered a question about her role in drafting the language by saying] that she had just been "clarifying the second aspect of what [ACOG] thought." Progressive blogs picked up this spin, claiming that she merely "clarified" ACOG's findings and made its position "more clear" so that its "intent was correctly understood." Come on. Kagan didn't just "clarify" ACOG's position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.

At the hearing, Kagan said ACOG had told her that intact D&X "was in some circumstances the medically best procedure." But that doesn't quite match her 1996 memo about her meeting with ACOG. In the memo, she wrote that

we went through every circumstance imaginable—post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc.—and there just aren't many where use of the partial-birth abortion is the least risky, let alone the "necessary," approach. No one should worry about being able to drive a truck through the President's proposed exception; the real issue is whether anything at all can get through it.

The language in this memo—"imaginable," "let alone," the quotes around "necessary"—depicts a conversation in which nobody could think of a real case where intact D&X was, as Kagan's revision would later put it, "the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman."

And yet the spin is offered that she merely "reframed" the issue, changed the emphasis, by turning a the facts -- that in every circumstance imaginable, this procedure simply wasn't necessary -- into the useful lie that it "may" be necessary.

Shouldn't her "may" have had a caveat there? As in "It may be necessary, but an exhaustive analysis of every imaginable scenario has yet to uncover a situation in which it is in fact necessary"?

Because if you've ruled out all situations you've looked at, but are still claiming it "may" be necessary, the truth demands a disclosure of precisely how unimaginable you yourself have found it to be.

And based on this lie, the courts have consistently claimed it was "unconstitutional" to prohibit (or merely limit) this procedure.

I'd say "expect that to change," but then, hey, Elena Kagan's soon to be ruling on her own lie.

Hm! I just realized -- we commonly differentiate the two uses of may in both written and spoken English.

When we are talking about a far-fetched, entirely hypoethetical slim possibility, we draw out the word to highlight that we're using it in that way -- "I guess the 12th Imam maaayyy rise tomorrow and lead Iran in battle against us." "I suppose Obamanomics coooullld work."

We italicize them in written English to stress these dubious possibilities as well.

No italics, though, for Kagan! No attempt to alert her reader -- the judges she would now presume to join -- that she was indulging in speculations about extreme unlikelihoods.

Nope, just plain old fashioned "may," same as you might say on a cloudy day, "You may want to bring an umbrella."